If you have been disinherited then you may be able to make a wills variation claim to vary the Last Will and Testament pursuant to the Wills, Estates and Succession Act (“WESA”), formerly the Wills Variation Act if you are within a set of persons entitled to challenge the Will.
Biological and Adopted Children of the Will – Maker
Section 60 of the WESA is intended to protect children and spouses from the perils of being improperly disinherited by a Last Will and Testament (“LW&T”).
Section 60 of the WESA provides as follows:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
So if the LW&T does not make adequate provision for the proper maintenance and support of the spouse or children an application can be made to the Supreme Court of British Columbia to have the LW&T varied.
When considering the possibility of variation with respect to children it is the legal and/or moral obligations that must be considered.
Infant Children
There is a clear legal and moral obligation for the Will – Maker to make provision for his / her infant children and those children will take priority over the claims of a financially independent spouse. See the decision of the Supreme Court of British Columbia in K.D.M.B. v. Taylor, 2008 BCSC 1498. It can be found here: http://canlii.ca/t/21dvn . However, it may be found sufficient for that testamentary provision to have been made to the surviving parent of the infant child, instead of to the child directly or in trust.
Adult Children
This legal remedies afforded to adult children are the most diverse and fascinating to assess. Affected by a wide spectrum of issues, some of which arise from childhood, a truly objective assessment is required to determine the strength of the claim to vary a will. It all comes down to the facts, some of which can be either troubling of requiring of self – reflection.
Typically there is no legal obligation to provide for adult independent children. Until quite recently there was considerable confusion as to the rights of adult independent children to contest the LW&T’s of their parents on the other available grounds, that of “moral obligation”. The Defendant Executor would always argue that pursuant to the British Columbia Court of Appeal decisions of Bell v. Roy Estate, 1993 CanLII 1262 BCCA http://canlii.ca/t/1db71 , and Kelly v. Baker, 1996 CanLII 1596 http://canlii.ca/t/1f07p the only requirement to survive the assault on the LW&T was that the will-maker’s reasons be valid (meaning factually true) and rational (in the sense that there is a logical connection between the reasons and the act of disinheritance), but there was no need that the the reason be justifiable (morally supportable by a community standard). Fortunately these two cases have now been found to run afoul of the Supreme Court of Canada and its decision of Tataryn v. Tataryn Estate, [1994] 2 SCR 807 http://canlii.ca/t/1frqk . Oddly it took 23 years for there to be a clear recognition that Bell and Kelly had improperly failed to make an objective assessment of the Will – Maker’s reasons assessed against contemporary community standards.
Each case requires its own separate assessment, whether there is an estrangement, neglect, no financial need, inaccurate reasons for a disinheritance, unequal financial contribution, litigation, unhappiness, gifts outside the estate, small / large estate, competing claims, misconduct of an adult child, or even cultural reasons that are not in accord with British Columbia community standards.
Of particular interest is the recent decision of the Supreme Court of British Columbia in Scurek v. Scurek, 2020 BCSC 450 http://canlii.ca/t/j6273 . In that case it was found that the claimant, was entitled to a share of the estate despite a considerable bequest having been made to the claimant’s children. The reasoning was that the claimant, who was in need, might never see any of the money left to her own children because they had no legal or moral obligation to support her.
Adopted Children
A child adopted by the Will Maker will have the have the same rights pursuant to section 60 of WESA as the Will – Maker’s biological offspring. However if the biological offspring is adopted by another person they would cease to have those rights with respect to their biological parents estate.
We would be happy to meet with you and discuss the circumstance of your disinheritance or if you are the executor, discuss the validity of the claims and assist with the defence of the LW&T.